Filed 4/10/14 P. v. Valenzuela CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
MANUEL VALENZUELA,
Defendant and Appellant. B247658
(Los Angeles County Super. Ct. No. MA057002)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Richard E. Naranjo, Judge. Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Mary Sanchez and Rene Judkiewicz, Deputy Attorneys Genera l, for Plaintiff and Respondent.

* * * * * *2 Appellant Manuel Valenzuela challenges his sentence following his conviction for one count of making criminal threats and one count of assault by means likely to produce great bodily injury with a great bod ily injury enhancement. We affirm.
PROCEDURAL HISTORY Appellant was charged in an amended info rmation of the following six counts: count one, corporal in jury to a spouse/cohab itant/child’s parent (Pen. Code, § 273.5, subd. (a)) 1 ; count two, criminal threat s (§ 422, subd. (a)); count three, felon in possession of a firearm with five priors (§ 298 00, subd. (a)(1)); count four, possession of ammunition (§ 30305, subd. (a)(1)); count fi ve, assault with a fi rearm (§ 245, subd. (a)(2)); and count six, assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). For counts one through five, it wa s alleged pursuant to section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i) that appellant suffered two prior serious or violent felony convictions, and pursuant to section 667.5, subdivision (b) that appellant su ffered and served a prison term for four prior convictions. For counts one and six, it was alleged appellant personally inflicted great bodily injury within the meaning of section 12022.7, su bdivision (a). For count five, it was alleged appellant personally used a firearm within the meaning of sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c).
The trial court bifurcated the trial on the priors, and held a jury trial on the counts in the amended information. During trial, the court granted the prosecution’s motion to dismiss counts one and five and the accomp anying personal use a llegation pursuant to section 1385. Appellant also waived his right to a jury trial on the pr iors. The jury found appellant guilty of counts two and six and not guilty of counts thr ee and four, and found true the allegation in count si x that appellant personally inf licted great bodily injury. Appellant waived a bench trial on his priors and admitted them. The trial court sentenced appellant to a to tal prison term of 11 years eight months, which consisted of the high term of four year s for count six, plus th ree years for the great

1 All further statutory references are to the Penal Code unless otherwise noted.3 bodily injury enhancement, plus one year fo r each of appellant’s four prior convictions, and eight months consecutive for count two (o ne-third of the midterm of two years). Appellant was awarded custody and conduct cr edits not at issue here. The court also imposed various fines and fees. 2 Appellant timely appealed.
STATEMENT OF FACTS Appellant’s conviction arose out of a domes tic assault that oc curred on June 15, 2012, between him and victim Candace Molina. On that night, Molina went to her apartment manager, Michelle Calzada. Mo lina was crying and upset, and Calzada saw Molina’s face was bleeding and swollen. To Calzada, Molina look ed scared. Molina told her, “He beat me up.” Calzada called 911. Los Angeles County Sheriff’s Departme nt Deputies Monica Alburez and Brandon Jacobs responded to the 911 call that there was a “273.5,” that is, a crime of domestic violence, at Molina’s apartment complex, and that the victim was being chased with a firearm. The deputies entered Molina’s apar tment and found a bag containing a rifle and ammunition on the living room floor. On the 911 call, Molina said her head hurt and she felt nauseous; she also vomited. She was taken to the hospital by ambulance. While there, she was diagnosed with a

2 Among other fines and fees , the court orally imposed a $50 criminal conviction assessment fee and a $40 court security fee for count six, and a $ 30 criminal conviction assessment and a $40 court security fee for count two. The sentencing minutes reflected slightly different fees of $40 for the cour t operations assessment for each count pursuant to section 1465.8, subdivision (a)(1) and $30 for the criminal conv iction assessment for each count pursuant to Go vernment Code section 70373. Co nsistent with the sentencing minutes, the abstract of judgment reflects an $80 court operations assessment and a $60 conviction assessment for both counts under those same c ode sections. Although the court’s oral pronouncement was incorrect, th e sentencing minutes and the abstract of judgment were correct, so we n eed not correct the abstract of judgment. (§ 1465.8, subd. (a)(1) [“To assist in funding court operations, an assessment of fort y dollars ($40) shall be imposed on every conviction for a criminal offense,” with certain exceptions not pertinent here]; Gov. Code, § 70373 [requiring $30 assessm ent for each felony “[t]o ensure and maintain adequate funding for court facilities”]; People v. Sencion (2012) 211 Cal.App.4th 480, 483-484 [separate fees apply to each count].)4 broken nose and a facial fracture. Deputy Alburez spoke with Molina at the hospital and saw she had extreme injuries, including that she was bleeding from her nose, lip, and eyelid; her eye was swollen shut; her mouth was very swollen; and her nose was swollen and tilted to the side. Molina was crying and complained that her head hurt, but was speaking clearly and able to understand Deputy Alburez. At the time, Molina told Deputy Alburez she went to a club called Crave that night, and while there she sp oke with a man named Fernando. Appellant was Molina’s boyfriend who had just gotten out of prison and was living w ith her, and he came to the club and saw Molina talking to Fernando, so he hit Fernando and they got into a fight. Security escorted the men out of the club. At the same ti me, Molina went to her car. Appellant showed up there, to ld Molina’s friend Casey to get out of the car, and got in. Appellant got into an argument with Molina, punched her in the face several times, and
threatened that he would “end her” if she di d not drive to her apar tment. She did not want to obey because she feared for her life, but she did so because appellant threatened to kill her if she disobeyed him. Either on the way to the ap artment or at the apartment, appellant told her, “Tonight is the night you’ re going to die.” In side the apartment, Molina thought appellant was grabbing for a gu n, so she ran to the apartment manager. Appellant chased her with wh at she thought was a firearm. Molina told Deputy Alburez appellant had just been released from prison for domestic violence against her, so she knew what he was capable of doing, and she knew he owned a gun. Molina eventually recanted this story. Two or three days later she told Deputy Alburez she had been lying about what happen ed and she had actually gotten into a fight
with a woman in the restroom of the club. Deputy Alburez aske d why Molina changed her story, and Molina said she did not reme mber what happened. She also could not remember anything about the woman, or whet her she fought back. Deputy Alburez did not believe Molina’s story, so she told Molina to speak with the dete ctive on the case. In Deputy Alburez’s experience, it was not un common for domestic violence victims to
recant their stories.5 Molina later spoke with Detective Nels on Rios of the Los Angeles Sheriff’s Department, telling him she had gotten into a fight with a woman in the restroom at Crave. She could not provide a description of the woman. She said she did not know why she initially lied ab out appellant hitting her. At trial, Molina continued to deny appe llant had threatened her or hit her on June 15, 2012. She testified she went to Crave by herself and was drunk and dancing with Fernando when appellant hit him. As appellant was being escorted out of the club, Molina noticed a girl being “real chummy” with him. Molina became irritated and ended up fighting the girl in the bathroom. She dr ove home by herself, and when she got there and saw her injuries, she went to her manage r’s apartment and got back at appellant by making up a story about appellant hitting her. She admitted approximately a year earlie r appellant had punched her in the head, which resulted in him pleading guilty to a crime and serving a on e-year prison term. Nevertheless, Molina continued to talk to him while he was in prison and they got back together, even though they argue and appella nt can be jealous. He was released on June 12, 2012, three days before th e assault at issue in this case. One of the owners of Crave, Dan Baldeo , testified he remembered seeing Molina at the club on June 15, 2012. He testifie d there was a fight between appellant and Fernando, but no other fights, including any between women. He would have known if a fight took place in the bathroom because bathroom checks were conducted throughout the night. That night there was no evidence a fight took place in the women’s bathroom,
such as blood on the floor. He also saw no facial injuries on Mo lina when she was at
Crave. Appellant did not testify, but he called tw o witnesses. Evelyn Alvarez worked as a
hostess on the restaurant side of Crave and as a promoter on the club side. She testified that on June 15, 2012, she saw a “rumble of fe males fighting” in the parking lot of Crave and they were on top of someone who looke d like Molina, although she could not be6 sure. 3 She stated there was no way Molina’s in juries could have occurred at the club because if they had, she woul d have known about them beca use the bouncers would have “been on it.” She had never met appellant. Casey Loya knew Molina through mutual fri ends for about five years. He saw Molina the night of the in cident and she appeared to have been drinking. He testified he was not with her the entire night and did not get into her car at the end of the night, nor did appellant attempt to pull him out of her ca r. He did not see her when she left and he did not see her get attacked by ap pellant or get into a fight with anyone else that night. He picked Molina up from th e hospital the next morning and she looked like she had been in a fight. Molina told hi m she had been in a fight with multiple females at the club, and she may have told him the fight occu rred in the bathroom. He knew appellant through Molina and considered him a “gangste r.” He did not see appellant at the club that night.
DISCUSSION Appellant argues the trial court abused its discretion in sentencing him in two respects. First, he claims the trial court im properly used the fact that he inflicted great bodily injury on Molina both to impose the up per term of four years on count six and to impose three years for the great bodily injury enhancement pursuant to section 12022.7, subdivision (c). Second, he claims the trial court erred by failing to state on the record the reasons for running his sentence on count two consecutively to his sentence on count
six. Appellant forfeited both contentions by not raising them at the time of sentencing. ( People v. Scott (1994) 9 Cal.4th 331, 353; People v. Powell (2011) 194 Cal.App.4th 1268, 1297-1298 ( Powell ) [failure to articulate reasons for consecutive sentence]; People
v. de Soto (1997) 54 Cal.App.4th 1, 8-9 [dual us e of facts to impose upper term and enhancement].) Recognizing his forfeiture problem, appellant argues his counsel

3 On cross-examination, she testified she could not be sure she saw this fight on June 15, 2012, and it could have b een another day during that summer.7 provided ineffective assistance by failing to object. In order to show ineffective assistance of counsel, appellant must show “deficient performance under an objective standard of professional reasonableness a nd prejudice under a test of reasonable probability of an adverse e ffect on the outcome.” ( Powell, supra
, at p. 1298, citing Strickland v. Washington (1984) 466 U.S. 668, 687.) 1. Background At the sentencing hearing, the prosecutor urged the court to impose the upper term
for count six and a consecutive term for count two, pointing out appellant had severely beaten Molina, including breaking her nose, afte r he forced her to dr ive to her apartment,
all of which occurred within a week of him be ing let out of prison on a prior domestic
violence conviction. He then listed factors in aggravation supporting the upper term for
count six: “the crime invo lved great violence or bod ily harm”; the victim was particularly vulnerable, in that she was appe llant’s girlfriend and “under his power”; and appellant took advantage of his position of tr ust or confidence to commit the offense. Appellant had also engaged in “prior violen t conduct that indicat es [he is] a serious danger to the victim as well as society. His prior convictions as an adult are numerous
and have increased in seriousness.” The prosecutor also noted appellant was on supervised release when he committed the current assault. In recommending the upper term, the proba tion report cited appellant’s “extensive prior criminal record that da tes back to 1999,” including tw o juvenile adjudications for assault with a deadly weapon, two convictions for assault with a d eadly weapon as an adult, and two convictions for being a felon in possession of a firearm. The report further noted that three days after being released he “violently attacked his girlfriend.” Then he was arrested again in Augu st 2012 for possession of a controlled substance. The probation report concluded, “[ o]bviously, the defendant has absolutely no intentions of becoming a law abiding citizen as he contin ues to commit crimes in the community and
continues to inflict emotional a nd physical pain to his girlfri end and others.” It further listed the following specific fa ctors in aggravation: (1) th e crime involved great violence, great bodily harm, threat of great bodily ha rm, or other acts disclosing a high degree of8 cruelty, viciousness, or callousness; (2) appellant was armed with or used a weapon at the
time of the commission of the cr ime; (3) the victim was par ticularly vulnerable; (4) the
manner in which the crime was carried out indicates planning, sophistication, or professionalism; (5) appellant took advantag e of a position of trust or confidence to commit the offense; (6) appellant has engaged in violent conduct that indicates a serious danger to society; (7) appellant’s prior conv ictions as an adult or sustained petitions in juvenile delinquency proceedings are num erous or of increasing seriousness; (8) appellant has served a prior prison term; and (9) appellant’s prior performance on probation or parole was unsatisfactory. The report listed no factors in mitigation. The trial judge addressed appellant direc tly before sentencing him. The judge explained he listened to jailhouse record ings of appellant and Molina, and those recordings were “very damning” for appella nt. He felt appellant still had manipulative power over Molina “in getting her to do things to a point where, I think, she committed perjury.” He also noted appellant’s extens ive criminal history demonstrated appellant had not “remained custody-free . . . for any length of time.” Appe llant had an adult criminal history dating back to 2003 and juve nile matters prior to that. And the judge noted appellant had assaulted Molina “within days, weeks at the most of getting out from a previous assault of Ms. Molina.” In pronouncing appellant’s sentence, th e trial court stated it was imposing the upper term for count six plus four years fo r the great bodily in jury allegation under
section 12022.7 “based on th e circumstances in aggrava tion which [the prosecutor] enumerated plus what is in the probation re port, balancing that against the circumstances in mitigation, which I don’t find any whatsoev er.” It imposed the sentence on count two as “eight months consecutive” without further explanation. 2. Dual Use of Great Bodily Inju ry for Upper Term and Enhancement Section 1170, subdivision (b) states in pertinent part, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall re st within the sound discretion of the court. . . . The court shall select the term which, in the court’s disc retion, best serves the interests of justice.9 The court shall set forth on th e record the reasons for imposi ng the term selected and the court may not impose an upper term by usin g the fact of any enhancement upon which sentence is imposed under any pr ovision of law.” Rule 4.420(c) of the California Rules of Court states in turn, “To co mply with section 11 70(b), a fact charged and found as an enhancement may be used as a reason for impo sing the upper term only if the court has discretion to strike the punishment for the enha ncement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term.”
We need not decide whethe r the trial court violated these provisions by using the fact of great bodily injury to support both the upper term and the great bodily injury enhancement for count six because appellant cannot show prejudice and therefore cannot
show ineffective assistance of counsel. “‘Improper dual use of the same fact for imposition of both an upper term and a cons ecutive term or other enhancement does not necessitate resentencing if “‘“[i]t is not reasonably prob able that a more favorable sentence would have been imposed in absence of the error.”’” ( People v. Osband (1996) 13 Cal.4th 622, 728 ( Osband ).) Because a single factor may ju stify imposing th e upper term ( Osband, supra , 13 Cal.4th at p. 728), even without the fact of great bodily injury, the trial court’s selection of the upper term was well supported by se veral other significant factors, such as Molina’s vulnerability; appellant’s power to manipulate her and take advantage of his position of trust with her, so mu ch so she perjured herself fo r him; his criminal history, which included a prior convicti on for domestic violence agains t Molina; and the fact that
the current assault occu rred only three days after he was released from prison on the prior
domestic violence conviction. Given the sever ity of Molina’s injuries (a broken nose, a facial fracture, bleeding from her nose, lip, and eyelid, an eye was swollen shut, and a swollen mouth) and the seriousness of the othe r factors the court identified, we have no doubt the trial court would have imposed the great bodily injury enhancement and relied on any one of those other factors to impose the upper term for count six.10 3. Failure to Expl ain Consecutive Term Section 1170, subdivision (c) requires in rele vant part that “[t]he court shall state
the reasons for its sentence choice on the record at the time of sentencing.” Rule 4.406(a) of the California Rules of Court states, “If the sentencing judge is required to give reasons for a sentence choice, the judge must st ate in simple language the primary factor or factors that support the exercise of discre tion or, if applicable, st ate that the judge has
no discretion. The statement need not be in the language of these rules. It must be delivered orally on the record.” Rule 4.406(b)(5) requires the trial court to state reasons for imposing consecutive sentences. And “[a]ny circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences,” except, as relevant he re, “[a] fact used to impose the upper term” or “[a] fact used to otherw ise enhance the defendant’s prison sentence.” (Cal. Rules of Court, rule 4.425(b)(1)-(2).) Although the trial court did not explai n its reasons for imposing a consecutive
sentence for count two at the moment it annou nced the sentence would be consecutive (and it would have been better practice to do so ), it is apparent the trial court relied on the factors listed in the probation report and set forth at the sentencing hearing, which the court thoroughly reviewed ju st prior to announcing appellant’s sentence. Appellant argues if the court did so, the n it improperly used the same facts to im pose both a consecutive sentence and an upper term. But as with imposing an upper term , a single factor is enough to impose a consecutive sentence, so “the court could have selected di sparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term.” ( Osband, supra , 13 Cal.4th at pp. 728-729.) Because there were plenty of serious factors in the record to support imposing both an u pper term and a consecu tive sentence without the trial court having to use any factor twi ce, we are confident it would have imposed a
consecutive sentence for count tw o based on factors not alrea dy used to impose the upper
term for count six.11 Thus, appellant has demonstrated neither error nor prejudice on this point, so his
ineffective assistance of counsel claim fails. 4
DISPOSITION The judgment is affirmed.

FLIER, J.
WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.

4 Appellant relies on two older cases finding errors from the dual use of facts at sentencing, but neither case addressed whethe r the defendants were prejudiced by those errors, so we do not find them applicable here. ( People v. Ratcliffe (1981) 124 Cal.App.3d 808, 821-822 [remanding for resenten cing because trial court used same facts for both upper term and consecutive sentence]; People v. Roberson (1978) 81 Cal.App.3d 890, 893 [remanding for resentencing because trial court used same fact for both upper term and enhancement], ove rruled on other grounds by People v. Crowson (1983) 33 Cal.3d 623, 632, fn. 10.)